January 15, 2016 — An op-ed piece by Pepperdine Law professor Derek Muller, titled “Natural-born mess: What would it take to kick Ted Cruz off the ballot?” was published in Reuters today. The article considers the issue of defining “natural-born citizen” and the potential outcomes of legal challenges to Senator Ted Cruz’s presidential eligibility. The article opens:

Donald Trump has resuscitated questions regarding Texas Senator Ted Cruz’s eligibility to serve as president of the United States. Cruz was born in Canada to a Cuban father and an American mother. A recent Trump tweet succinctly pressed the issue: “Sadly, there is no way that Ted Cruz can continue running in the Republican primary unless he can erase doubt on eligibility. Dems will sue.”

The U.S. Constitution requires that the president be a “natural-born citizen” of the United States. Though many contend that being born to an American mother is sufficient, others say only those born on U.S. soil are eligible.

What would a legal challenge to Cruz’s eligibility look like? It’s far more complicated than you might think because it depends on how each state handles his access to the ballot. New Hampshire’s Ballot Law Commission, for example, has already said that Cruz is eligible — at least until a court says otherwise.

A second op-ed by Professor Muller titled “Courts should stay out of Cruz eligibility fight” also appeared today in The Hill. The article asks if it is necessary for a federal court to review the eligibility of a presidential candidate when the voters, electors, and Congress can do so. An excerpt from the article appears below:

…There are many other bodies capable of resolving this dispute without judicial involvement.

First, we, the voters, can decide. If a significant number of voters believe that Cruz is ineligible, those voters can cast ballots for other candidates. The same held true for voters weighing McCain’s birthplace in the Panama Canal Zone, or Barack Obama’s birth to a Kenyan father in Hawaii.

Voters can also moot the issue before it ever arises in a court. George Romney’s birth in Mexico, for instance, never became an issue—because he lost the election. While voters may not be voting for or against candidates because of their eligibility, they can render the issue irrelevant by voting for another candidate.

Second, presidential electors can decide. Presidential electors, after all, are actually the ones who cast votes for the president and vice president. While electors are often pledged to a presidential candidate, they do not always cast their votes for that pledged candidate. Many “faithless” electors have cast their ballots for candidates other than those they pledged to support. And these electors may decide, quite sincerely, to refuse to cast their ballots for a candidate if they conclude he is not constitutionally qualified.

And finally, Congress itself can decide. In 1800, Congress hotly debated whether it had the power to review the qualifications of candidates and the ballots cast by electors. Some thought Congress simply counted ballots; others thought Congress could review the qualifications and nullify votes cast for ineligible candidate.

Additionally, on January 14, 2016, Professor Muller was quoted in a Fox News piece titled “Who can settle Cruz eligibility question once and for all?” The article considers the debate among constitutional scholars on the meaning of the term “natural-born citizen” and how the Supreme Court might determine a legal challenge to Senator Ted Cruz’s eligibility. Professor Muller’s quote in the article reads:

Others believe the courts will ultimately leave this one up to the people. Professor Derek Muller, associate professor at Pepperdine School of Law, told FoxNews.com that courts would be unwilling to settle a contentious political matter that could be decided by voters.

“Courts are often reluctant to get involved in divisive political questions, Muller said. “I think at this point it might remain an open question for some time — the most likely way this ends in court is if a state decides to keep him off the ballot and that’s unlikely at this point.”